Ankeny v. Pierce, 1 Ill. 262, 1 Breese 262 (1828)

Dec. 1828 · Illinois Supreme Court

1 Ill. 262, 1 Breese 262

John Ankeny, Plaintiff in Error, v. James Pierce, Defendant in Error.

ERROR TO JACKSON.

A tenant is estopped from denying the title of his landlord.

If a tenant enters upon and enjoys leased premises, though his landlord may have no title, the tenant has no right to complain of his landlord until after an eviction.

Baker, for plaintiff in error.

Cowles, for defendant in error.

Opinion of the Court by

Chief Justice Wilson.

This is an action of covenant from the Jackson circuit court, founded upon an article of agreement for the leasing of the big Muddy-Saline, by Pierce, the plaintiff below, to the defendant, Ankeny. To the plaintiff’s declaration, the defendant filed five pleas, all of which were withdrawn except the third and fifth.

The third plea avers a want of consideration, to which plea the plaintiff replies, and the defendant files a demurrer to his replication. The court overruled the demurrer. This opinion is assigned for error, but I am clearly of opinion that the court decided correctly. The replication shows a good and valuable consideration; it sets forth a lease from the said Pierce to the said Ankeny, of the premises therein described, and the tenant, Ankeny, is estopped from denying the title of the landlord, Pierce, under whom lie had enjoyed the premises, as is alleged in plaintiff’s declaration. The demurrer to the fifth plea was well sustained ; the plea does not allege that Pierce had not obtained a lease from the governor, and for aught that appears, he may have had good title and authority to lease the premises. Another objection to the plea is, that it does not appear but that defendant entered upon and enjoyed the demised premises ; if so, he has no ground of complaint until after eviction, which is not alleged. The judgment of the court below is affirmed, with all costs here and below, and execution is directed to issue from this court. ⁽¹⁾

Judgment affirmed

(1) While a tenancy exists, the tenant can not dispute the title of his landlord, either by setting np a title in himself, or a third person. Dunbar v. Bonesteel, 3 Scam., 34. Wells v. Mason et al., 4 Scam., 90. Furgeson v. Miles, 3 Gilm., 358. Rigg v. Cook, 4 Gilm., 351. Tilghman v. Little, 13 Ill., 241.

The tenant must surrender up the possession before he can assail or question the title of his landlord. He must put the landlord in the same position he occupied, when he parted with the possession. Tilghman v. Little, supra, and cases there cited.

But the tenant may show that the title of his landlord has terminated, either by its original limitation or by a conveyance to himself or a third person, or by the judgment and operation of law. Id.

If the landlord transfers the estate, the allegiance of the tenant is due to the grantee. Id.

If the estate is vested in a third person by operation of law, the tenant holds the possession subject to the title of such third person. Id.

The tenant may purchase in the premises under a judgment against the landlord, and set up the title thus acquired, in bar of an action brought against him by the landlord. Id.

A tenant has a right to attorn to one who has acquired his landlord’s title, but not to one who has acquired a title hostile to the landlord, although it may be a better title. Bailey v. Moore et al., 21 Ill., 165.

An eviction in fact or in effect, which renders the premises useless, may prevent a recovery of rent. Halligan v. Wade, 21 Ill., 470.

A tenant, upon a proceeding by distress, may show that he was evicted from a part of the premises, or that he was disturbed in his possession. Wade v. Halligan, 16 Ill., 507.